Thursday, December 6, 2018

HAPPY HOLIDAYS 2018 to the VSP - Day of Hope group

WISHING YOU ALL A GREAT 2018

****HAPPY HOLIDAYS*****

 FROM  THE LAW OFFICE OF DIANE T. LETARTE

========================================

                                          A BIG THANK YOU
                       for a warm welcome we received at 
                         VALLEY STATE PRISON (VSP) 
                      as the Attorney Guest Speaker for the 

                   1st Annual (2018) Day of Hope (Youth Offender)  
                         [Attorney Letarte bottom row, near center] 



*Photo at the gym location, inside VSP

Wednesday, November 28, 2018

In re PALMER, No. A147177 / S252145 - Petition for Review Filed 10/23/18

 In re PALMER  [25 Cal App5th 120], No. A147177 / S252145 *** Status UPDATE ***

As a quick reminder on the In re Palmer  - it is a great Youth Offender Parole Hearing case Published September 13, 2018. Shortly after the decision came out -- it was sent up to the CA Supreme with the Filing of a Petition for Review (by opposing counsel (aka BPH)) on October 23, 2018. No Surprise here!

SUMMARY:   (see my prior BLOG post)
In re Palmer was  published in September 2018 by the First District Court of Appeal on what it means to give “great weight” to the youth offender factors at a youth offender parole hearing, and finding that the Board’s lip service to the youth offender factors in this case was insufficient. 
The Court held that “to give ‘great weight’ to the youth offender factors as required under section 4801, subdivision (c), the Board must accept those factors as indicating suitability for release on parole absent substantial evidence of countervailing considerations indicating unsuitability.”  It also holds that the Board is “required to satisfactorily explain why a youth offender is not entitled to a finding of suitability for release despite the presence of the statutory youth offender factors to which the Board is required to give ‘great weight.’”  
 
One of the interesting comments by Judge Kline in Palmer was the reference to the proposed Title 15 Ca. Code of Regs (CCR) 2440-2446 - which are still "in the making" by BPH for the Youth Offender Parole Hearings. The Youth Offender Regs are way overdue, in my opinion and many others. As you will notice below that comment [on proposed regs] did not go unnoticed by the Supreme Court. See the partial docket below of 11/26/18 on the Extension of time granted to December 7, 2018. This will give BPH a push to give priority to the new proposed youth offender Regs, which have been in the making for 4 years or so.

A second Note is the attempt [by BPH]  to "depublish" this great Youth Offender case. As you can see several agencies have pitched in to OPPOSE the depublication of the case.

Let's hope for the best on several fronts of this case... It appears there is more action to come in December stay tune... or  go to http://appellatecases.courtinfo.ca.gov/  using the search of In Re Palmer under the Supreme Court case #S252145


PROCEDURAL UPDATE of the case: 
 
 10/23/18       Petition for Review filed by BPH
 
 11/13/2018     Answer to petition for review filed by Petitioner  

11/13/2018     Request for depublication (petition for review pending)    

11/21/2018     Application for 14-day extension of time filed by  Petitioner

11/21/2018     Opposition to depublication request filed Pacific Juvenile Def. Ctr 
===============================================================
11/26/2018     Extension of time granted The application for an extension of time is
granted to December 7, 2018. No further extensions of time are contemplated. In the reply to the answer to the petition for review, please also apprise the court of the following. 
 
1. What was the outcome of the December 6, 2018 parole suitability hearing for inmate Palmer? 
 
2. Was the December 6, 2018 hearing a regularly scheduled parole hearing, or an advanced hearing pursuant to Penal Code section 3041.5, subdivisions (b)(4) or (d)(1)? 
 
3. What formal action was taken, if any, at the Board of Parole Hearings' November 2018 Executive Board Meeting regarding proposed regulations for Parole Consideration Hearings for Youth Offenders (Cal. Code Regs., tit. 15, proposed §§ 2440-2446?)

==============================================================
11/26/2018     Opposition to depublication request filed Dr. Kristen Bell Rstr. Justice

11/26/2018     Opposition to depublication request filed  by  Petitioner  
 
         ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
 
In contacting BPH regarding Cal. Code Regs., tit. 15, proposed §§ 2440-2446 STATUS this was their comment:
 
"We [BPH] are in the final stages of updating these regulations so that they are in compliance with AB 1308 and SB 394, which both took effect on January 1, 2018.  We initially anticipated voting on and filing these regulations earlier this year, however, Senate Bill 1242 (Reg. Sess. 2017-2018) was introduced this year and, in its earlier drafts, it was making additional amendments to the youth offender statutes. Thus, we were forced to again delay the regulations pending the outcome of that bill.  However, the bill was ultimately amended and those changes were removed.  Therefore, we are now in the last stages of finalizing these regulations for presentation to the commissioners"
 
 
 
 
STAY TUNE FOR In re PALMER updates in Dec 2018 and onto early 2019 - let's hope for the best outcome to assist all the YOUTH OFFENDERs which will have their Parole hearing coming up in 2019....

Friday, October 12, 2018

IN RE PALMER, No. A147177 (Cal. App. 9/13/2018) ----- " Great weight" for youth factors defined

  IN RE PALMER, No. A147177 ( 9/13/18)  - Published Opinion

A BIG win for all the YOUTH OFFENDERS that will be in front of the BOARD for their Youth Offender Parole Hearing.


SUMMARY:
This is published opinion issued last month by the First District Court of Appeal on what it means to give “great weight” to the youth offender factors at a youth offender parole hearing, and finding that the Board’s lip service to the youth offender factors in this case was insufficient. 

The Court holds that “to give ‘great weight’ to the youth offender factors as required under section 4801, subdivision (c), the Board must accept those factors as indicating suitability for release on parole absent substantial evidence of countervailing considerations indicating unsuitability.”  It also holds that the Board is “required to satisfactorily explain why a youth offender is not entitled to a finding of suitability for release despite the presence of the statutory youth offender factors to which the Board is required to give ‘great weight.’” 
 

PROCEDURAL BACKGROUND
In 1988, when he was 17 years old, petitioner William Palmer pled guilty to
kidnapping for robbery. Sentenced to life with the possibility of parole, Palmer has
appeared before the Board of Parole Hearings (Board) 10 times, without success. At the
most recent hearing, on June 2, 2015, the Board denied parole and deferred Palmer’s next
parole hearing for five years.


FACTUAL BACKGROUND  Excerpts
Palmer was raised primarily by his mother, with only sporadic contact with his
father. At some point, his family moved from a low income area to one with
“predominantly wealthier kids”; Palmer related that his self-esteem suffered and he
committed crimes and used drugs in order to be accepted by his peers, “have the things
that they had” and “do the things they were doing.” He admitted his first offense, driving
without a license, in July 1985. In February 1986, he admitted a violation of Penal Code section 288a, a felony, for his conduct with three minors.2 He was placed on probation, which he then violated with two charges of robbery, burglary, and attempted burglary.

Palmer committed his life offense in 1988. His face covered with a ski mask,
Palmer lay in wait in a parking garage in an apartment complex with which he was
familiar (having previously committed burglaries there). He had taken a bus to this
location because he “knew rich people lived there” Brandishing an unloaded .357
revolver he had stolen in a previous burglary, Palmer confronted Randy Compton, and
ordered him to turn over his wallet. Compton said he did not have one, and Palmer “spur
of the moment” decided to ask if he had a bank card; Compton said he did, and Palmer
ordered him to drive to an ATM and withdraw $200. When they arrived at the bank,
Compton, an off-duty police officer, drew his gun and fired 15 rounds at Palmer, who
was hit in the knee and fled. Palmer was captured shortly thereafter, waived his Miranda
rights, and confessed to the crime in an account fully corroborated by Compton.


During his 30 years in prison, Palmer, a high school dropout, obtained a General
Education Diploma (GED) and, in 2007 an Associate of Arts Degree from Palo Verde
College. The deputy commissioner at the 2015 hearing commented that Palmer had done
a “really good job” with his educational upgrade. Palmer learned to paint in prison,
joined “Arts in Corrections,” and has become an accomplished artist: He has sold some
of his art work and has painted three murals on the prison grounds. one of which the
deputy commissioner described as “very beautiful,” and another of which the presiding
commissioner described as “very good work.”


At the parole hearing preceding the one now before us, on April 11, 2013, the
Board denied parole primarily because of Palmer’s disciplinary violations in prison,
which were described as reflecting “serious misconduct while incarcerated.” The denial
was for five years, but Palmer was successful in having that time advanced. At the
present hearing on June 2, 2015, Palmer acknowledged that while he was not happy about
the five-year denial in 2013, he “deserved it” because he had “two 115s” and “knew that
[he] still had some work to do.” He agreed with the deputy commissioner’s assessment
that the 2013 panel “kind of nailed it” in seeing an “ongoing pattern” of Palmer
minimizing his prior criminality and failing to remain free of disciplinary violations, and
having not “internalized any of the concepts of self-help.” Palmer acknowledged that he
did not see this in 2013, and saw the Board as an adversary. He explained that it was
only recently, with the help of Newbill, that he came to realize “[w]e [are] on the same
team. We want to make sure that the public is safe from me, from my decision making.”

DISCUSSION  Excerpts
Palmer’s claim is based on the 2013 enactment of Senate Bill No. 260, which
added provisions to the Penal Code relating to parole hearings for “youth offenders” who
were 18 years of age or younger at the time of their controlling offense (i.e., that for
which the longest period of imprisonment was imposed). (Stats. 2013, ch. 312, §§ 3046,
subd. (c), 3051, 4801, subd. (c).) Later amendments raised the age of a “youth offender”
first to 23 years of age or less and then to 25 years of age or less. (Stats. 2015, ch. 471,
§ 1; Stats. 2017, ch. 674, §§ 1, 2.)

Section 4801 provides that the Board “shall give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark features of youth, and
subsequent growth and increased maturity of the prisoner in accordance with relevant
case law.” (§ 4801, subd. (c).) Similarly, section 3051 provides that any psychological
evaluations and risk assessment instruments used by the Board “shall take into
consideration the diminished culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the individual.”
(§ 3051, subd. (f)(1).)

......More DISCUSSION  omitted - See full OPINION below or here
....................................................................................................

Finally, the Board maintains that it “gave great weight to Palmer’s youth factors
when determining his suitability, and referenced this obligation no fewer than 10 times.”
As the Board sees it, Palmer misconstrues the youth offender statutes “as requiring the
Board to categorically find any juvenile offender suitable for parole simply based on his age when he committed the life crime. Palmer errs because considering the youth factors
does not diminish the Board’s discretion to deny parole when the record demonstrates
that the inmate would pose a current, unreasonable risk to public safety.”

The Board’s contentions fail to address the meaning of the statutory phrase “great
weight,” and treat the youth offender factors as no more significant than the regulatory
and other factors it conventionally relies upon to determine whether a life prisoner is
suitable for release. The Board’s argument that it “is the sole decisionmaker that
considers and weighs the relevant factors under the current law” ignores the fact that the
direction to not only consider but accord “great weight” to the youth factors comes from
the Legislature. The Legislature “is thus accorded the broadest discretion possible in
enacting penal statutes and in specifying punishment for crime.” (In re Lynch (1972) 8
Cal.3d 410, 414.) “The efficacy of any sentencing system cannot be assessed absent
agreement on the purposes and objectives of the penal system. And the responsibility for
making these fundamental choices and implementing them lies with the legislature.”
(Harmelin v. Michigan (1991) 501 U.S. 957, 998-999; accord, Solem v. Helm (1983) 463
U.S. 277, 290 [“[r]eviewing courts . . . should grant substantial deference to the broad
authority that legislatures necessarily possess in determining types and limits of
punishments for crimes”].) Here, while otherwise leaving it to the Board to enumerate and determine the relative importance of factors bearing on suitability for parole, the
Legislature has singled out the youth factors in a rare, express directive as to the Board’s
exercise of discretion.

Untenably, the Board treats the youth offender statutes as merely an exhortation
for leniency, placing no limitation on the Board’s unfettered discretion to decide whether
a youthful offender remains an unreasonable risk of danger to society if released from
prison and requiring only that the prisoner’s status as a youth offender be acknowledged
for the record and taken into account in some undefined fashion. Except for the repetition
of that acknowledgment, the transcript of the “youth offender hearing” conducted in the
present case is not materially different from those of the parole hearings conducted by the
Board for adult offenders.


The Board’s published statistics reflect comparatively few youth offenders being granted parole, at rates very similar to those for adult offenders, which raises some question whether “great weight” is being given to the statutory youth offender factors. And a recent empirical study suggests that the “great weight” mandate is not functioning to focus the Board on the youth offender factors, while variables that do not appear related to growth and maturity have a strong impact.

The chief flaw in the Board’s view of the youth offender factors is the Board’s
failure to appreciate that they serve a legislative purpose very different from that of the
regulatory and other factors the Board conventionally employs to determine whether a
prisoner is suitable for release.
The regulatory factors tending to show suitability and
unsuitability for release (Regs., §§ 2281, subd. (c)(d), 2402, subd. (c)(d)), and the non-regulatory factors that may also be used for that purpose (such as “insight” into the
commitment offense or the lack thereof (see In re Shaputis, supra, 53 Cal.4th at pp. 218-
219), include circumstances predating, relating to and postdating the life crime, but
because the critical question is whether the inmate currently presents a risk to public
safety, the focus is largely on postconviction circumstances. Two of the three youth
factors, however—the “diminished culpability of youth offenders compared to that of
adults” and “the hallmark features of youth”—look backward to the time when the life
crime was committed and thus specifically relate to the constitutional principle of
proportionality. The necessary inquiry in proportionality analysis is into “the nature of
the offense and/or the offender, with particular regard to the degree of danger both
present to society,” (In re Lynch, supra, 8 Cal.3d at p. 425) as the punishment must fit
both the offense and the offender, with both viewed “in the concrete rather than the
abstract.” (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Palmer does not, as the Board says, interpret the youth offender statutes “as
requiring the Board to categorically find any juvenile offender suitable for parole simply
based on his age when he committed the life crime.” His position, with which we agree,
is that the statutes represent a legislative determination that life prisoners who committed
their controlling offense while under the age of 26 are less culpable than those who
committed the same offense after reaching age 26—absent “substantial evidence of
countervailing considerations” (Martin, supra, 42 Cal.3d at p. 448)—should therefore be
punished less harshly than otherwise comparable adult offenders.

The Board Failed to Accord “Great Weight” to the Youth Offender Factors
Although the youth offender statutes, which became effective almost five years
ago, directed the Board to adopt new regulations regarding determinations of suitability
for youth offenders (§ 3051, subd. (e)), such regulations have not yet been added to title
15 of the California Code of Regulations. Proposed regulations were submitted to the
Board at its November 2016 executive board meeting, however, which provide a useful
framework for consideration of the Board’s decision in the present case............

The Board thus denied Palmer release, and subjected him to five more years of
imprisonment, notwithstanding the presence of almost all of the 19 factors identified by
the Board to flesh out and give meaning to the statutory youth offender factors, primarily
because three years earlier he improperly used a cell phone to contact his sister about the
death of their mother, and a year earlier he gave his girlfriend as a gift the T-shirt he used
when he painted
. This determination hardly appears to reflect “substantial evidence of
countervailing considerations”
(Martin, supra, 42 Cal.3d at p. 448) justifying a denial of
parole despite giving “great weight” to the juvenile offender factors.
On the contrary, in
the absence of any other explanation, the elevation of Palmer’s two minor violations over
all of his numerous other qualities seems to us arbitrary and capricious.



 If the Board had reason to believe Palmer’s failure to fully control his impulses
outweighed his “considered reflection” on his past life choices, his “development of prosocial
relationships” and “independence from negative impulses,” his “remorse,” his
“positive institutional conduct,” and “other evidence of rehabilitation,” it has never
explained why it believes this to be the case, much less pointed to substantial supporting evidence. As we have said, our previous review led us to observe that it was “hard to
discern” any nexus between Palmer’s recent rules violation and “present dangerousness”;
the evidence was sufficient to satisfy the “ultralenient” standard, we said, “but barely. It
is an extremely close case.” That observation was made without regard to the Board’s
consideration of the youth offender factors. Considering the Board’s statutory obligation
to give “great weight” to those factors, its decision to find Palmer unsuitable for release
despite the presence of almost all the variables the Board itself has deemed indicative of
the statutory youth offender factors cannot stand.



DISPOSITION
For the foregoing reasons, the petition is granted, the decision of the Board
denying Palmer parole is vacated, and the Board is again ordered to hold a new hearing
as soon as practicable, and in no event later than 120 days of the filing of this opinion,
and to decide whether Palmer is suitable for release on parole in a manner that comports
with this opinion.


 **************************

  See full PALMER OPINION - Click  here




























Wednesday, September 5, 2018

HUGE VICTORY FOR LIFERs as SB1437 [Felony Murder rule] waits for the Governor's signature

On 8/31/2018 inmates' families  (and all the advocates for the Bill) can claim a big victory (for  Lifers incarcerated via the old CA Felony Murder rule) --- as Senate Bill 1437 goes to the Governor's desk for signature. Remember: The felony-murder rule is an exception to the normal rules of California murder law. Generally, you cannot be convicted of murder in California unless you acted with "malice aforethought" - which basically means intent to kill, or a reckless disregard for human life.

At this point we are confident that Governor Brown will sign this bill into law, to then be effective January 1, 2019. Governor Brown has done much to reform the Justice system and helped clear out our overcrowded prisons. This would be one more "push" (on reforms) before he exits his position, on his last term as Governor of CA.

This bill is historic --  In California, the felony-murder rule has a statutory history that dates back to 1850. The felony murder rule has been law in California basically since the 1800s; this Bill is changing over 130 years of unjust law.  Under the new bill the first or second-degree murder conviction, which resulted in sentences of 25 to life, 15 to life or life without parole, would be vacated, (UNLESS a peace officer was involved) but be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). It is unclear how the DA will be handling these cases (i.e. petitions).

All those who are involved in a crime that results in a death, regardless of their level of participation, prior knowledge or aforethought, were adjudged to be as culpable as the individual who took the actions resulting in death. The new law requires convictions for murder to require ‘malice aforethought’ in involvement the crime and notes such malice cannot be imputed simply by participation in criminal acts that may be part of the crime.

SB 1437 does not abolish the felony murder rule. Rather, it limits a first-degree murder sentence to those who 1) actually killed; 2) aided and abetted the killing with the intent to cause death; or 3) acted as a major participant and with reckless disregard to human life during the course of the felony.


RELIEF: 

The relief will be available via a petition to their sentencing court(s) asking for consideration for recall of sentence on the murder conviction. Those filing such petitions will most likely be eligible for counsel, via the services of the county’s public defenders. If such petitions were successful and the murder conviction and resulting sentence was vacated, the court could still sentence the individual for participation in the underlying crime as well as mandating a term of parole supervision for 3 years following completion of any assessed sentence.

One can be ready and prepared ahead of time for this law but.....Any petitions filed with the Court cannot be considered valid, if filed before January 1, 2019. It is our opinion that a WELL CRAFTED petition with the assistance of a private attorney, will be more successful then just filing a Declaration that states one wants to be re sentenced.  Be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). In our opinion, if a Plea bargain was done (vs a trial - on the commitment offense) then it will be that much more difficult for the Court to properly re-sentence an individual, without having an abundance of evidence in front of the Court to make a proper ruling on the level of involvement in the underlying murder. We anticipate possible Court hearings (mini trials) to flush out some of the facts of the underlying murder case, especially if there is no Court of Appeal or "trial" record to assist the court.

Stay Tune..... it is just a guess at this time on HOW it will all unfold, as the rubber meets the road......


TRIVIA: In Canada;
In Canada, it has been held to be unconstitutional, as breaching the principles of fundamental justice.

The Canadian Charter of Rights and Freedoms states that a conviction for murder requires proof beyond a reasonable doubt of a subjective foresight of death. (i.e. INTENT TO KILL must be present)


======================================================================
Thanks to the LSA newsletter for 
plucking out the relevant portions of the language of the bill as quoted below:

“It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”


In order to achieve redress of sentence individuals must:


 “170.95. (a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.


(2) The petitioner was convicted of first degree or second-degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second-degree murder.


(3) The petitioner could not be convicted of first or second-degree murder because of changes to Section 188 or 189 made effective January 1, 2019.


(b) (1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition.”


“At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.


“A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to three years following the completion of the sentence.”


It is up to the petitioner (prisoner seeking relief) to prove the prima facie case (at first look, or first evidence) that he or she comes under the guidelines of the bill and request counsel, if desired. It is also important to note that this bill will not wholly absolve many individuals from participation in a crime, such as robbery or assault that resulted in a death. While it may vacate the murder conviction, the courts are free to sentence the petitioner on the underlying or residual crime, and it is conceivable that those who may find relief from a murder conviction and be re-sentenced for the other offenses may still find themselves incarcerated, albeit probably with an end in sight.


======================================================================

Wednesday, August 22, 2018

In re Jenson 6/6/2018: No Thompsom terms--PC 3051 Youth offender supersedes PC 1170.1

Case Name: In re Jenson , District: 2 DCA , Division: 3 , Case #: B286056
Opinion Date: 6/6/2018 , DAR #: 5521

In short youth offender inmate can not be held in prison to serve the terms for their in-prison offenses.  Once the Youth is granted Parole s/he should not serve any Thompson case time, UNLESS the in-prison offense involves MALICE AFORETHOUGHT and can be punish with a Life Term.
 ===========
Case Holding:
Penal Code section 3051, which is the later-enacted and more specific statute regarding parole for youthful offenders, supersedes Penal Code section 1170.1 with respect to sentences for in-prison offenses.

In 1979, at age 19, Jenson committed first degree felony murder. He was convicted and sentenced to 25 years to life. During his first nine years of incarceration, he committed three in-prison felonies: escape, possession of a weapon, and assault with a deadly weapon on an officer. The assault occurred when he was 29 years old. He received additional time for the in-prison crimes.

Jenson was found suitable for parole in 2016 at a youth offender parole hearing, but CDCR did not release him and instead required him to serve the terms for his in-prison offenses. He filed a petition for writ of habeas corpus. Held: Petition granted.

Generally, when prisoners serving indeterminate sentences commit an in-prison offense and a consecutive term is imposed, that term begins on the date the prisoner is found suitable for parole. (Pen. Code, § 1170.1, subd. (c).) However, Senate Bill No. 260, passed in 2013, sought to implement limitations on juvenile offender sentencing that had been announced in a number of state and federal cases. To that end, section 3051 established a parole mechanism that provides a defendant serving a sentence for crimes he committed before age 26 with an opportunity to obtain release upon demonstrated rehabilitation.

It states that a qualified offender who committed a controlling offense as a youth is entitled to a parole hearing after a fixed period of years, depending on his sentence. Subdivision (h) states that prisoners who commit in-prison offenses after age 26 remain eligible for a parole suitability hearing, so long as any in-prison offense does not involve malice and cannot be punished by life in prison. This reflects the Legislature's intent to exempt youth offenders from the provisions of section 1170.1, subdivision (c) and supersedes that section in this context.

The full opinion is available on https://law.justia.com/cases/california/court-of-appeal/2018/b286056.html


NOTE this is a RECAP summary taken from CCAP  at www.capcentral.org.
A big thank you for their efforts in summarize crucial case law.

Tuesday, July 17, 2018

SIXTH ANNUAL Lifer BBQ - - find YOUR LIFER

LIFER BBQ at City Buena Park - Fun had by ALL again!

The Sixth annual lifer picnic Hosted by Gary “Red” Eccher and Attorney Keith Chandler [ECCHER CONSULTING COMPANY (ECC)] gets better every year, with the typical grilled hot dog, BBQ style. We had additional food items ranging from pizza to fried chicken; delivered on the hour (fresh and hot) for several hours through the day.  The meals were well rounded with veggies, fruits and sweets! We had great 70 ish degree weather with a cool breezes in the typical Southern Sunny California day. 
Over 300 people gathered thorough the day at Buena Park from Noon to 6 pm. We had the typical LIFER Group picture (see below) at 3pm.


Gary "Red" Eccher, Diane "Renegade Attorney" Letarte, Keith Chandler  

A BIG THANKS !!!!!!

to everyone that pitched in to help GARY &KEITH for this GREAT yearly summer BBQ.

LIFER group Photo
LIFER Group photo






 FIND YOUR LIFER - 

THE 3PM GROUP PHOTOS























Infamous "Doc" Hales,  Attorney Marc Norton, Diane "Renegade Attorney" Letarte having fun @ BBQ




Even some of Attorney Diane Letarte's Clients were "incognito"  wearing street clothes !!













It is always great to meet up with clients at the Annual BBQ to see how well they have prospered!





 


More clients that keep returning every year to the FUN Annual reunion.....










Let's not FORGET Vanessa Sloane from LSA who is such a strong Advocate for the Lifers. 
( Lifer Support Alliance - LSA)


 Keith Chandler (right) who worked hard to get his JD and is working relentlessly to help Lifers with his new academic skills.

Friday, June 22, 2018

In re Darryl Poole (6/22/18) - Court socks it to BOARD for Lip Service to YOPH

Hearty congratulations to awesome Attorney Michael Satris!

In re Darryl Doyle  case #A152341 - (Alameda County Super. Ct. No. 96274)
In re Poole ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2018 
D.A.R. 6257 (1st Dist. 2018) June 22, 2018 (A1522341)
 


The  COA of the state of California just Published today 6/22/18 a Great decision in a Youth Offender Parole Hearing case!!  
Division Two of the First Appellate District vacates a parole denial, smacking the  BOARD around a bit to for its lack of insight finding: 
The court stated: "It is unclear what greater insight the Board could have been looking for."

AND here is what the Court stated for the BOARD's treatment of youth Factors:

The Board paid lip service to the requirement that it consider youth factors, but the record gives no indication the Board actually did so, much less that it gave these factors “great weight.” (Pen. Code, § 4801, subd. (c).)



COURT SUMMARY

Convicted of a second degree murder committed in 1988, petitioner Darryl Poole
was sentenced to a prison term of  20 years to life.  He contends the Board of Parole
Hearings acted arbitrarily in finding him unsuitable
for release on parole in that there was
not “some evidence” he posed a current danger to public safety.  Additionally, he
challenges the Board’s application of Marsy’s Law, enacted subsequent to his offense, as
imposing ex post facto punishment , and argues that the Board’s appointment procedures
and compensation limits for attorneys appointed to represent inmates at parole hearings
deprive him and other inmates of effective assistance of counsel.  We find no evidence in
the record to support the Board’s determination that petitioner presents a current danger
to the public.  Accordingly, the Board’s decision cannot stand.


IN CONCLUSION

The record clearly demonstrates that petitioner has long since disavowed the
criminal conduct and values of his youth and dedicated himself to improvement of his
own skills and internal resources and to providing help to others.  He has expressed understanding of what caused him to commit a heinous crime as a 19-year-old, over 28 years ago, and remorse for taking an innocent life and the resulting pain he inflicted on the victim’s family. Even without reference to the directives of Penal Code section 4801, this record reflects no support for the Board’s finding of “no insight,” and no evidence petitioner poses a current threat to public safety. Considering
the contrast between the irrationality, impulsivity and recklessness of petitioner’s offense
as a 19-year-old, and the evidence of his subsequent development of maturity and changes in attitude and conduct, the Board’s hearing and decision in this case inspire little confidence that it took seriously the directive of  Penal Code sections 3051 and 4801, subdivision (c), for it to provide a “meaningful opportunity to obtain release, ”with “great weight” given to “the diminished culpability of youth
as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

The Board’s decision cannot stand.

DISPOSITION

The decision of the Board is hereby vacated.  The matter is remanded for a new
parole suitability hearing consistent with due process of law and this decision.  (See
Prather, supra,  50 Cal.4th at p. 244.)


 Click Here for the full OPINION : 


Thursday, May 3, 2018

SB 1437 - Accomplice Liability for Felony Murder

UPDATE: SB 1437 - Accomplice Liability for Felony Murder
 
SB1437 is a bill to amend the Penal Code sections relating to felony murder.  It also appears that as currently proposed, it would be retroactive and potentially apply to many inmates.

The legislative process is long and tortuous.  During that process bills are often amended. At this time we cannot predict the final result of this legislation, or even if it will eventually become law. Since we do not know what the final form of this legislation will be, we cannot reliably predict how it may affect specific inmates. It will be a case-by-case basis.  This Senate Bill (SB 1437) would certainly offer some hope for resentencing at this time.


For all those anxious people - Keep in mind - there is nothing to do until SB1437 actually becomes law.  Quick Bill update below-->
 
===============================================
SB 1437 passed out of Senate Public Safety committee on 4/24/2018.
 
It will now probably go to Senate Appropriations Committee and put in the Suspense file. The Assembly Appropriations Committee reviews all bills with any fiscal impact after passage by a policy committee. Another unique feature of the Appropriations Committee is the Suspense File, to which the committee sends any bill with an annual cost of more than $150,000 (any fund). Suspense File bills are then considered at one hearing after the state budget has been prepared and the committee has a better sense of available revenue. No testimony is presented – author or witness – at the Suspense File hearing.
 
The way the Bill is written it could possibly force counties and cities to incur expenses for re-sentencing hearings and if that is the case, the legislature must appropriate funds to send to the municipalities to cover those costs.

This is standard legislative practice.  If it passes Appropriations and the Senate floor it will go to Assembly, where the process starts over again. Everything must be passed and signed by the Gov by mid-September 2018, before possibly taking effect Jan. 1 of 2019

Those who fall under the Bill would most likely have to petition the sentencing court for re-sentencing under this Bill.  At this time, It does not seem to exclude third-strikers, but exactly how the process will go will in part depend on how California Dept. Of Corrections and Rehabilitation (CDCR) implements the regulations that will put the Bill into effect, something we won't know for awhile.

This Bill is funneling thru the legislative process now and seems to have considerable support.  it will probably have a harder time in the Assembly, but we stay hopeful that it will pass both the Senate and the Assembly. 

Our Law office will be accepting new cases in January 2019 on this SB1437, if it becomes Law.

Wednesday, April 4, 2018

In re ROY BUTLER (Supreme reverses Base Term calculation requirement) 4/2/2018

Super. Ct. No. 91694B
S237014  on Habeas Corpus.
Ct.App. 1/2 A139411, Alameda County

In short: In light of the state’s current sentencing regime (new laws) and the existence of parole procedures focusing on public safety determinations, the Board is not constitutionally required to continue calculating base terms as required in the In re Butler settlement Order. Accordingly, we  ( the California Supreme) reverse the Court of Appeal.

This means--->  Do NOT expect anymore "Base Term" Calculations at Parole Suitability Hearings. Once found suitable the Title 15 (CCR) "matrix" is not used by BPH anymore. The MEPD and YPED along with other Eligible Parole Date (calculation) will have the final say so for the release. Keep in mind that Senate Bill 230, authored by Hancock mandates that inmates be paroled once they are found suitable by the BPH.  Before SB230, some inmates continued to be held for years after they were deemed suitable for parole because of enhancements that BPH  added to their base terms, such as for additional criminal charges that did not result in a conviction.  Basically, the Supreme Court decided that since these new mandates were in place to protect mishaps, the term calculation were no longer needed.
NOTE: Prop 57 another help for the inmates because it can reduce the Eligible Parole/Release Date (due to milestones reached  via Rehabilitative Achievement Credits).

Read more here: http://www.sacbee.com/news/politics-government/capitol-alert/article50555705.html#storylink=cpy




In re Butler Background Facts:

In December 2013, the First District Court of Appeal approved a settlement in the case In re Butler, effective April 2014, requiring the Board of Parole Hearings to notify life-term prisoners of their “base term” — the sentence they could expect to serve because of the circumstances of their crime — at their first parole hearing. The ruling rocked BPH's old process of not calculating Base Term, UNLESS the inmates were found suitable. In re Butler made an impression on all the inmates that finally received a "Base Term" Calculation when they appeared before the Board of Parole Hearings (BPH). Remembering that BPH use to be named the Board of Prison Terms (BPT) - the name itself implies BPT should have been calculating Base Terms for the crime along time ago.
 
For a while (from 2014) it was great during the Parole Suitability Hearings, because BPH were required to do a "base term" calculations for the inmates. .....even beyond the passing of Senate Bill 230 [introduced by Senator Hancock February 13, 2015].  Another process hiccup occurred, after the passing of SB 230, because BPH decided NOT to do TERM calculations for the Youth Offender and the Elderly Parole hearings.....so Off to Court went Butler with his Legal advocates to argue that BPH had no authority to violate the terms of the Butler Settlement Order.

On or about July 27, 2016, the Court slapped BPH on the wrist for disobeying the Court [Butler] Stipulation. The Board was facing $1,000 fines in over 1700 cases where they failed to set those base terms since the Butler policy went into effect (4/1/2014). As a remedy from BPH, many of the inmates were provided an "on paper" retroactive Base Term calculation by BPH, to avoid the financial fines.

Fast forward to this week and unfortunately but NOT surprisingly the California Supreme reversed the Court of Appeal by stating that : "In light of the state’s current sentencing regime and the existence of parole procedures focusing on public safety determinations, the Board is not constitutionally required to continue calculating base terms as required in the settlement order. Accordingly, we [Supreme] reverse the Court of Appeal."


Case Facts:
People convicted of noncapital murder and certain other criminal offenses in California serve indeterminate sentences that run from a minimum number of years to life, making release possible before the end of their life. The Board of Parole Hearings (the Board) decides, subject to relevant statutory provisions and review by the Governor, whether such prisoners are suitable for release. This case concerns the interaction of those statutory provisions with a settlement agreement
arising from litigation about the Board’s procedures. While serving an indeterminate prison term, Roy Butler filed a petition for writ of habeas corpus on December 12, 2012, alleging in part that the Board had a responsibility to avoid parole determinations leading to grossly disproportionate prison terms. In 2013, petitioner Roy Butler and respondent, the Board, agreed to a settlement requiring
the Board to calculate the “base terms” of an inmate serving an indeterminate sentence for use at the inmate’s initial parole hearing. At the time of the settlement agreement, “base terms” governed the earliest possible release date for inmates serving indeterminate sentences.

Since then, changes to California’s criminal justice system have altered the relevant statutory landscape, such that “base terms” no longer govern the release date of inmates subject to indeterminate sentences.The question before us is whether those statutory developments warrant modification of the settlement order to relieve the Board of any separate obligation to calculate “base terms” under the agreement. The Court of Appeal concluded the answer was no, so the settlement order could remain in force despite the statutory changes. We disagree. The settlement agreement was premised on the idea that “base terms” played some role –– defined by statute –– in determining release dates for those sentenced to indeterminate terms. Given this premise, the elimination of “base term” calculations from any such role is a sufficiently material change that it not only justifies — but in this case, requires — modification of the settlement by the Court of Appeal.

The Court of Appeal also concluded that specific “base term” calculations were necessary to assure life prisoners would not suffer constitutionally excessive punishment. Here too, we differ with the appellate court. Base term calculations no longer play a role in the public safety assessments undertaken by the Board to determine the release dates for inmates sentenced to indeterminate terms, and are not designed or obviously well-suited as a tool for avoiding unconstitutionally long terms of incarceration. And, at least to some extent, these inmates are protected against disproportionate punishment through other means, such as provisions ending indeterminate sentences when individuals have served the statutory minimum term and have been found suitable for release. In light of the state’s current sentencing regime and the existence of parole procedures focusing on public safety determinations, the Board is not constitutionally required to continue calculating base terms as required in the settlement order. Accordingly, we reverse the Court of Appeal.

===================================================================

For the full case decision click on BUTLER LINK (4/2/2018):


Tuesday, March 20, 2018

OVERDUE: VACATION TIME for LETARLE LAW OFFICE

We will not have a BLOG this month 
because our LAW OFFICE will be taking a SHORT VACATION, to RECHARGE our battery.

We will be Fresh and READY for our Up and Coming Parole Hearings.

=========================================

                       A BIG THANK YOU
 for a warm welcome we received at VALLEY STATE PRISON (VSP) as the Attorney Guest Speaker for the 1st Annual Day of Hope (Youth Offender) last Saturday - 3/17/2018


========================================


 

Wednesday, February 28, 2018

Attorney Letarte invited to the MAGIC program @ VSP on Saturday 3/17/18 @ 9:00- 2:30pm

Attorney Letarte has been invited to the Valley State Prison (VSP) 1st Annual Special Event entitled a "a Day of Hope: Teenagers are Salvageable". The event will entail many events including Guest Speaker(s) and poignant Transformed Inmate Testimonials.  MAGIC stands for Maturity, Accountability, Growth, Inspiration. The MAGIC Rehabilitative Program is part of the self-help inmate group at VSP.

If you have a Loved one Incarcerated atValley State Prison - please make sure to inform them of this Event - there will be several attorneys at the event including Attorney Diane Letarte. More important will be the Transformed Inmate Testimonials, this will be words of wisdom for any inmates that want a pathway to the free community by having self-introspection. The process of introspection relies exclusively on observation of one's mental state, while in a spiritual context it may refer to the examination of one's soul! Self reflection helps to build emotional self-awareness. By taking the time to ask yourself the important questions, you gain a better understanding of your emotions, strengths, weaknesses and driving factors.

The event purpose is to highlight rehabilitation by recognizing the salvageable nature of juveniles tried as adults. The event hopes to encourage and inspire inmates to hold themselves to higher standards of accountability, acknowledge the harm done to victims and survivors, recognize the importance of education in rehabilitation, and proclaim the redeeming worth and value of children who have committed crimes. 

Valley State Prison (VSP)will be hosting the MAGIC 1st Annual Special Event entitled a ‘Day of Hope: Teenagers are Salvageable’ on Saturday, March 17, 2018 from 9:00 am to 2:30 pm

BACKGROUND:

MAGIC was started by a youth offender for youth offenders as a 16 - 20 week program split into two parts. The first part covers internal topics such as Domestic Violence; Victim Impact; Amends & Culpability; Trauma & Healing; Listening Reflectively; Emotional Management & Remorse and Insight. The second part of the program covers Board of Parole Hearings Preparation such as Parole Plans Overview; Relapse Prevention Plan; Remorse & Insight; Attorney Visits; Psych evaluation. Preparation and concludes with a Mock Board Hearing. As such MAGIC meets weekly. The founder of MAGIC was a Youth Offender who was 16 years old when he was tried as an adult and sentenced to 176 years to life in prion. He had two choices at that age with that sentence, to become institutionalized or to change his life becoming accountable for his crime and educate himself. He chose to follow in the footsteps of two significant mentors one of whom founded Criminal and Gang members Anonymous (CGA), a 12 step program that addresses criminal lifestyle along the lines of Alcoholics Anonymous; and  Self-Awareness and Recovery, a program dedicated to internal change utilizing a model of transformation


Wednesday, January 31, 2018

December 2017: Gov. BROWN COMMUTED 19 inmates, INCLUDING 9 LWOP

A big Thank you to Life Support Alliance (LSA) P.O. Box 277, Rancho Cordova, CA 95741 for this enlightening article; and who continuously provides up to date information that impact Lifers across California currently under the Executive Branch of Gov. Brown’s office.

The excerpt below is provided as a courtesy from LSA and they can be reached at  lifesupportalliance@gmail.com


====================================================

A few days before Christmas 2017, Governor Jerry Brown, taking a page from Santa Claus’ book, delivered some pretty big Christmas presents to many former and current prisoners, handing out a whopping 132 pardons to former inmates, and reducing the sentence of 19 current prisoners.

In a truly life-changing move, nine (9) of the commutations offered LWOP inmates the hope of parole, by changing their sentences to life with the possibility of parole.

These eve of Christmas Eve announcements nearly doubled Brown’s total commutation number for the year, to total of 35 commutations in 2017, 15 of those LWOP inmates.

*******************************************
Attorney Richard Pfeiffer: A big Congrats to our colleague!


Law Office of Rich Pfeiffer       Website:    http://highenergylaw.com/
14931 Anderson Way
Po Box 721
Silverado, CA, 92676


Interestingly, one of the pardons issued by Brown was to Richard Pfeiffer, released in 1994 after serving a bit less than 2 years for robbery and burglary. Why, in the 132 pardons issued, is this notable?

Because Pfeiffer went on to become not only an attorney, but an attorney who represents lifers at parole hearings and does incredible Oral arguments in the Court of Appeals. Since Pfeiffer’s release  Governor Brown noted he has:
“lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.”

The Governor also noted Pfeiffer has also provided pro bono assistance to several criminal justice organizations.
******************************************

For those still inside, the news was equally positive. Several of the 9 LWOP inmates touched by the Governor also fell under the umbrella of YOPH and 7 were women prisoners.

The commutations also included one third-striker (3X). Most LWOP sentences were commuted to sentences of 25 to life with the possibility of parole, meaning many will appear before the board within the next handful of years.

In noting his reasons for commuting the sentences of both LWOP and other inmates, the Governor noted all had been exemplary prisoners, most never receiving any RVRs, being heavily involved in, and in some cases actually creating, self-help programs. Many were able to submit letters from prisons staff, including wardens, in their commutation petitions.

 In detailing his reasons for providing potential relief for many of the female inmates, Brown noted they had been victims of intimate partner battery, situations that likely contributed to their actions in committing their crimes. Intimate Partner Battery (aka BWS) has long been recognized as a mitigating factor in criminal actions, though most of the women affected by the Governor’s pardons were sentenced prior to this [battered women syndrome] (BWS)  being recognized by the legal community.